2020 Census Must Count Illegal Immigrants When Allocating House Seats, Judges Rule
A special three-judge panel has blocked President Trump’s plan to exclude immigrants living in the U.S. illegally from the 2020 census count that will be used to redistribute seats in the House of Representatives.
Acting on two lawsuits filed in New York by a group of states, cities, counties and civil-rights groups, the judges said Thursday that the plan violates several laws that spell out how the results of the decennial census are to be used for distributing congressional seats.
The president issued his memorandum on July 21, ordering that the 2020 population totals for reapportionment not include people in the U.S. illegally. The Census Bureau is trying to complete its pandemic-delayed count this month so that it can deliver state totals used for reapportionment by the legal deadline of Dec. 31.
The president, the court concluded, cannot leave unauthorized immigrants out of that specific count.
The decision comes after the July release of a memorandum by President Trump that directs Commerce Secretary Wilbur Ross, who oversees the U.S. Census Bureau, to provide Trump with information needed to exclude immigrants who are living in the United States without authorization from the apportionment count.
The panel of judges — including U.S. Circuit Judge Richard Wesley, Circuit Judge Peter Hall and District Judge Jesse Furman — noted the president does have some direction over the census and how the results of the count are used for reapportionment. But that authority, which is delegated from Congress, is limited.
A “tabulation of total population” is what the commerce secretary is directed to report to the president from the once-a-decade census, under Title 13 of the U.S. Code. According to Title 2, the president, in turn, is supposed to hand off to Congress “a statement showing the whole number of persons in each State.”
Because Trump’s memo “deviates” from that “statutory scheme,” the judges declared it “an unlawful exercise of the authority granted to the President.”
The panel ultimately issued a narrow ruling against the memo.
“Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself,” the panel wrote in their opinion.
Their injunction against the administration permanently bans it from including any information about the number of unauthorized immigrants in each state in the commerce secretary’s report to the president. The judges, however, are not stopping the administration from “continuing to study whether and how it would be feasible to calculate” those numbers to allow the secretary to comply with the memo “in a timely fashion” in case a higher court overturns their ruling.
Since the first U.S. census in 1790, the country’s official once-a-decade population numbers used to reapportion seats in the House of Representatives have included both U.S. citizens and noncitizens, regardless of immigration status. Enacted after the Civil War, the 14th Amendment ended the counting of an enslaved person as “three fifths” of a free person by requiring the counting of the “whole number of persons in each state.”
The president ultimately plays a limited role in reapportioning Congress. After the president hands off the latest numbers to Congress, the clerk of the House of Representatives is supposed to send to the governors a “certificate of the number of Representatives” each state receives, according to Title 2 of the U.S. Code.
The Justice Department, which is representing the administration in these two lawsuits based in Manhattan, declined to comment on the judge’s ruling, DOJ spokesperson Mollie Timmons said in an email to NPR.
